The Supreme Court Constitution Bench holds that the Governor erred in calling for a trust vote without ‘objective material’ to show Uddhav Thackeray government had lost support.

The Supreme Court, in a unanimous judgment, effectively opened the doors for disqualification proceedings against Maharashtra Chief Minister Eknath Shinde for defection from the Shiv Sena party, and held that the then-Governor Bhagat Singh Koshyari “erred” in calling for a trust vote which triggered the fall of the Uddhav Thackeray-led Maha Vikas Aghadi (MVA) government in mid-2022.

However, the court also said that Governor Koshyari was right in inviting Mr. Shinde to form the new government as Mr. Thackeray had resigned before the floor test. This means that the Shinde government will continue in power for now.

‘Floor test was error’
“The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government… Floor test cannot be used as a means to settle differences within a political party… The Governor erred in concluding that Mr. Thackeray had lost support… The discretion to call for a floor test is not an unfettered discretion,” a Constitution Bench led by Chief Justice of India D.Y. Chandrachud observed.

The court, however, said that it could not quash the voluntary resignation of Mr. Thackeray as Chief Minister a day ahead of the floor test on June 30, and thus reinstate his MVA government.

“This court cannot quash a resignation that has been submitted voluntarily. Had Mr. Thackeray refrained from resigning from the post of the Chief Minister, this court could have considered the grant of the remedy of reinstating the government headed by him,” it said.

‘Government formation justified’
Given the resignation, the court said that Governor Koshyari was right in then inviting Mr. Shinde to form the new government. “The post of the Chief Minister of the State of Maharashtra fell vacant after the resignation of Mr. Thackeray on June 29, 2022. The leader of the party that had returned the highest number of candidates to the State Assembly extended support on behalf of the party to Mr. Shinde. Thus, the decision of the Governor to invite Mr. Shinde to form the government was justified,” the Bench held.

The court refused to invalidate the election of Speaker Rahul Narwekar merely because some of the MLAs who participated in the election faced disqualification proceedings.

Ball in Speaker’s court
The court did not accept the plea made by the Thackeray faction to call for and decide the disqualification petitions pending before Speaker Rahul Narwekar.

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“Absent exceptional circumstances, the Speaker is the appropriate authority to adjudicate petitions for disqualification under the Tenth Schedule [anti-defection law] … The Speaker embodies propriety and impartiality and that it was therefore inappropriate to express distrust in the office of the Speaker,” Chief Justice Chandrachud, who authored the unanimous verdict for the five-judge Bench, noted.

The Bench nevertheless noted that any decision taken by the Speaker, acting in the capacity of tribunal, on the disqualification petitions was subject to judicial review.

Split vs defection
Further, the court drew a map of factors for the Speaker to consider while deciding the disqualification petitions. First, the court said that the Speaker could not accept the Shinde group’s sole defense that they had merely “split” from the Shiv Sena party, and not defected. The court said that the defense of a “split” was no longer available to the Shinde group with the deletion of Paragraph 3 from the Tenth Schedule by the Constitution (Ninety-first Amendment) Act in 2003.

“The defense sought to be availed of must be found within the Tenth Schedule as it currently stands,” the Bench held. Second, the court said that the Speaker, while considering the question of which faction was the “real” Shiv Sena, must consider the version of the party constitution which was submitted to the Election Commission of India with the consent of both factions. This would be the 2018 party constitution in which Mr. Thackeray was elected party president.

‘Not a numbers game’
Third, the judgment said that the Speaker must not be swayed by the numbers in the House. “The Speaker must not base his decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly. This is not a game of numbers, but of something more. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue,” Chief Justice Chandrachud said.

Finally, the court said, when there are two or more Whips appointed by two or more factions of a political party, the Speaker must go by which of the two Whips represented the political party.

‘Illegal decisions’
To make matters worse for the Shinde group, the court declared Mr. Narwekar’s decision recognizing Bharat Gogawale as Chief Whip of Shiv Sena as “illegal.” Again, the court found that the Speaker’s decision to recognize Mr. Shinde as the “Leader of the Shiv Sena Legislative Party” was “illegal” too. The court, in short, set aside Mr. Narwekar’s decision on July 3, 2022 to recognize Mr. Gogawale as the Chief Whip of the Shiv Sena in place of Sunil Prabhu, and Mr. Shinde as Leader in place of the Thackeray faction’s Ajay Choudhari.

“The Speaker, by recognizing the action of a faction of the Shiv Sena Legislative Party (SSLP) without determining whether they represented the will of the political party, acted contrary to the provisions of the Tenth Schedule… The Speaker must recognize the Whip and the Leader who are duly authorized by the political party with reference to the provisions of the party constitution,” the judgment said.

‘Can’t rely on ECI’
The Bench also found fault with Mr. Narwekar’s decision to stay the disqualification proceedings “in anticipation” of the decision of the Election Commission of India (ECI) on which of the two rival factions was the original political party of the Shiv Sena.

“The decision of the ECI cannot be relied upon by the Speaker for adjudicating disqualification proceedings. If the disqualification petitions are adjudicated based on the decision of the ECI in such cases, the decision of the ECI would have retrospective effect. This would be contrary to law,” the court said.

It said that the decision of the ECI recognizing the Shinde faction as the real Shiv Sena would take effect only “prospectively,” that is, after the Speaker takes a call on the pending disqualification petitions. “In the event that members of the faction which has been awarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in the House will have to follow the procedure prescribed in the Symbols Order and in any other relevant law for the allotment of a fresh symbol to their group,” the court ruled.

The court further referred to a larger Bench of seven judges the question of whether a Speaker facing removal could decide disqualification petitions against MLAs under the Tenth Schedule.